Who Owns Copyright on Recorded Lectures?

The matter of who owns the copyright for a recorded lecture is not a simple one. The key issue here is that a faculty member’s institution may consider lectures “work for hire” and thus owned by the institution (e.g., college or university). If recorded lectures are considered work for hire, faculty technically do not have a right to their own materials without permission from the institution. This can even extend to materials a person creates and does not host with the university; rather it covers any product developed while employed in the course of job duties. The AAUP has taken a stance against considering most faculty-created materials as work for hire, and cite a particular case supporting this (Williams v. Weisser, 1969) but as usual, the law can be interpreted multiple ways.

For example, from the AAUP’s discussion:

While classroom lectures are generally considered the property of the faculty, and faculty are presumed to have the right to take them when they leave the institution, the advent of distance education has led to questions of exactly when concurrent teaching, for example, would violate understandings of faculty time commitment. (a) Arthur Miller, a well-know professor at Harvard Law School, became involved in a controversy with Harvard University after he provided videotaped lectures for the Concord University School of Law, an on-line law school, without Harvard’s permission. The controversy clearly raised intellectual property concerns. As Miller posed the query, “How much of Arthur Miller does Harvard own?” It also raised the issue of how conflicts-of-commitment policies apply to online education or “electronic moonlighting.” As one commentator noted: “[A]pplication of these general [conflicts of commitment] policies in the Internet era is not . . . straightforward. Why, for example, would the videotaping of a series of lectures for an online institution interfere with one’s teaching and research responsibilities, if giving a series of off-campus lectures would not?”

In years past, the idea of work for hire created concerns among faculty that their lectures could be recorded, with or without their knowledge, and then used as the primary instructional material in an online course without their knowledge, essentially ignoring the issue of lecture copyright entirely. My impression of what’s happened since though is that most administrators have realized that faculty tend to complain a lot, and loudly. So rather than outright ask adjuncts to reuse other faculty materials freely and risk the ire of full-time faculty, they just don’t try it in the first place. But that doesn’t prevent them from asking faculty for permission and recommending compliance with that request.

I wouldn’t recommend this, personally – it increases the possibility of your materials being used long after you are affiliated with that institution, and your materials could be changed/updated without your knowledge in some cases. You are essentially giving up your lecture copyright, willingly. The idea of a video of me lecturing to students for a university education they’re paying for when I don’t even know they exist? The idea of my lecture being repackaged into a certificate course or MOOC as a university cash cow without my knowledge? I am personally uncomfortable with that.

Importantly, some institutions have dealt with the work-for-hire issue by articulating specific policies to protect faculty copyright. See for example:

• At the University of North Carolina, the video appears to be owned by faculty, although the university has nearly unlimited rights to reuse it at will (except when “commercialized”).
• At Saint Louis University,  the video is more clearly owned by the faculty who created it.
• In the University of Missouri system,  the video appears to be owned by faculty unless the university specifically asks the faculty member to make the video for broad university use.  This might even apply when “bonus funds” are awarded to faculty for designing new online courses.

As you can see, policies vary quite widely. But it’s also important to remember that institutions (or systems) that post such policies online are likely to have more faculty-friendly policies. If your institution doesn’t have an intellectual property section of its faculty handbook, particularly one covering lecture copyright, the interpretation defaults to however the institution’s legal counsel has interpreted US law, which is usually “university owns it.” If you aren’t careful, your lectures could end up in a MOOC or worse.

From the article cited above:

Two professors who previously worked at Arizona State University have sued ASU for using an online course they created, purportedly without their permission. The professors, Jeff MacSwan and his wife, Kellie Rolstad, who both now work at the University of Maryland, said they were told while developing the course that they would keep ownership of it. But ASU ultimately paid other people to teach the course, which relied heavily on recorded lectures and narrated PowerPoint slides MacSwan and Rolstad argue they created. The suit was dismissed by a federal court, but the two are now appealing.” “It really has big consequences for higher education potentially,” McSwan said. “If universities can take course content and do whatever they want with it, then faculty don’t control the curriculum any more.”

If you want to take this to an extreme, imagine these ideas applied to a graduate student, teaching her own course, discovering that her course will be included in a MOOC. The possibilities are troubling and extensive.

Note. I posted the original version of this content on lecture copyright to the PSYCHTEACHER discussion board but thought it would be of interest to the broader community.